[BN] the know

Tonawanda Coke trial begins in federal court

Lawyers for Tonawanda Coke Corp. have subpoenaed the Clean Air Coalition for copies of documents its has collected and shared with the DEC and EPA and for its records on residents suing the company, blaming emissions for cancer-related illnesses. (Buffalo News file photo) Buffalo News file photo

Prosecutors say their case against Tonawanda Coke is about profits versus safety and greed versus health.

Defense lawyers say, no, it's really about state and federal regulators stacking the deck against a company that always played by the rules.

Those claims and counterclaims are at the heart of one of the biggest environmental trials in years, a criminal prosecution that is unfolding in Buffalo federal court this week.

It's a case of the government accusing Tonawanda Coke of 19 separate crimes, including polluting the air and ground around its River Road plant in the Town of Tonawanda and then trying to hide that fact from government inspectors.

“We all know a business operates to make money, and there's nothing wrong with that,” Assistant U.S. Attorney Aaron J. Mango said in his opening statement Wednesday. “However, in our society, we don't believe in profit at all costs.”

The company will likely counter with records indicating it passed inspection after inspection, year after year, until state and federal regulators “stacked the deck” by changing the rules.

Tonawanda Coke will point to its 30-plus year record of compliance with environmental regulations and suggest that changed in April 2009 when state and federal regulators conducted a weeklong inspection of the plant.

“The government's case in this prosecution is backwards,” said Gregory F. Linsin, a lawyer for the company. “The evidence will show that for more than 30 years, from 1978 through April of 2009, the company worked hard to understand those regulations and comply with those regulations.”

In the end, when the lawyers are all done, a federal court jury will decide whether Tonawanda Coke is guilty of the 19 criminal charges that prosecutors claim are rooted in a business strategy that stressed profits over safety.

Wednesday, the first day of the trial, lawyers on both sides used their opening statements to provide a blueprint for the case.

Mango, for example, promised to prove that Tonawanda Coke and fellow defendant Mark L. Kamholz, the company's environmental control manager, repeatedly violated the federal Clean Air Act, accounting for 15 of the 19 charges against the company.

At the heart of the prosecution's claims is the allegation that Tonawanda Coke repeatedly – and illegally – spewed coke oven gas with benzene into the air, often through a pressure relief valve.

Mango said the company led regulators to believe the valve was inconsequential because it rarely opened, a claim later found to be untrue.

“Every half-hour, every 20 minutes,” Mango said of the frequency of the valve opening. “Sometimes, these emissions were continuous. The valve was open all the time.”

Prosecutors also plan to challenge the company's use of two “quenching towers” and the towers' lack of baffles, a piece of equipment designed to reduce the particulate matter in the coke oven gas produced at the plant.

“Clear as day,” Mango said of the federal regulations requiring baffles, “but the evidence will show that neither tower had baffles.”

Defense lawyer Rodney O. Personius asked the jury to wait for “the rest of the story.” He said the evidence will show that Tonawanda Coke and Kamholz had a reputation among state and federal regulators as straight shooters willing to work with them.

At some point, he said, the state Department of Environmental Conservation and the U.S. Environmental Protection Agency changed their approach to the company.

The company is expected to argue that the valve was exempt from state law and that the towers lacked baffles because the company had an “explicit exemption” for that as well.

In all, the company faces 19 felony charges. Most of them are violations of the Clean Air Act, but the company also is accused of violating a federal law known as the Resource Conservation and Recovery Act. The law covers the storage and treatment of coal tar sludge, one of the byproducts of the making coke.

The company also faces a single charge of obstructing justice, a reference to the April 2009 inspection and the allegation that Kamholz and others tried to conceal information about the valve from the inspectors.

The company will no doubt argue that the government's prosecution is flawed, the result of regulators not dealing fairly with the company.

A civil suit on behalf of residents who live near the plant was filed in 2010 and suggests that dangerous levels of benzene, a carcinogen, were found at the plant. The lawsuit asks for “substantial” punitive and compensatory damages but does not specify an amount.